Lerners
By Sanan (Sunny) Mirza
July 28th, 2025
Finality Over Fairness: A Cautionary Tale in Will Drafting and Limitation Periods… When Does the Clock Start Ticking?
The Ontario Superior Court’s decision in Tessaro v. Gora, quietly answered a long-standing question among estate planners: what happens when a decades-old drafting error is unexpectedly discovered? In answering this question, Justice Myers not only clarified the legal consequences of such an error but also reiterated the importance of diligent drafting in estate planning.
This case centered around the will of Leopold Ryczkowski, drafted in November of 1991 by John Leonard Zigmund Gora, a lawyer. The clause which instigated litigation purported to divide the real estate of the deceased’s estate pursuant to the following terms:
To such of my sisters living at the time of my death, I give whatever real estate that I own… in equal shares per stirpes.
The ambiguity in this clause arose because one of Leopold’s sisters — Monica — predeceased him, creating a legal contradiction. The term “per stirpes” typically ensures that a deceased beneficiary’s share passes to their descendants. However, the language of the above clause limited the gift to “sisters living at the time of my death,” effectively excluding Monica’s children from inheriting from his estate.
In December of 2020 — two and a half years after Leopold passed away — Monica’s daughters sued Gora for professional negligence. They argued that the drafting error deprived them of their rightful inheritance. Five days after Monica’s daughters commenced their action, the deceased’s surviving sisters commenced a similar but separate action against Gora.
The Legal Issue: Statutory Interpretation – When Does the Clock Start Ticking?
Beneficiaries often cannot discover drafting errors until after the testator’s death — sometimes decades later. Nonetheless, Justice Myers emphasized that limitation statutes are designed to promote finality and certainty, even at the expense of perceived fairness in individual cases. This decision reinforces that the judiciary’s role is to interpret the law, not to rewrite it. If exceptions to the 15-year ultimate limitation period for estate-related claims are to be made, that responsibility lies with the legislature.
While the court’s decision may feel harsh, it reflects the law’s prioritization of finality and certainty. In the context of estate law, where consequences often unfold long after documents are signed, it is a reminder that timing is everything.
This case is a compelling example of how the law’s demand for finality can override fairness. For testators, it is a reminder to regularly review and update estate planning documents to ensure they reflect current intentions and family circumstances.
